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Robertson v. Commissioner of Social Security

United States District Court, D. New Jersey

September 29, 2017


          Alan H. Polonsky, Esq. Polonsky and Polonsky Attorney for Plaintiff Dale Robertson.

          Gregg W. Marsano, Esq. Special Assistant U.S. Attorney Social Security Administration Attorney for Defendant Commissioner of Social Security.




         This matter comes before the Court pursuant to 42 U.S.C. § 405(g) for review of the final decision of the Commissioner of the Social Security Administration (“SSA”) denying Plaintiff Dale Robertson's (“Plaintiff”) application for disability benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. § 401, et seq. Plaintiff, who suffers from rosacea blepharitis, essential hypertension, obesity, type II diabetes, depression, post-traumatic stress disorder (“PTSD”), and panic disorder with agoraphobia, was denied benefits for the period beginning March 13, 2011, the alleged date of disability, to April 27, 2016, the date on which the Administrative Law Judge (“ALJ”) issued a written decision.

         In the pending appeal, Plaintiff argues that the ALJ's decision must be reversed and remanded on two grounds. Plaintiff contends: (1) the ALJ's finding that Plaintiff had a residual functional capacity (“RFC”) to perform medium work, subject to certain limitations, was not supported by substantial evidence; and (2) the ALJ's determination that a significant number of alternative jobs existed in the national economy that Plaintiff was able to perform was not supported by substantial evidence. For the reasons stated below, the Court will affirm the ALJ's decision denying Plaintiff disability benefits.


         A. Procedural History

         Plaintiff filed an application for disability insurance benefits on October 14, 2013, alleging an onset of disability beginning March 13, 2011. (R. at 21.) On February 12, 2014, the SSA denied the claim, and upon reconsideration on May 6, 2014. (R. at 21.) Hearings were held on December 2, 2015 before ALJ Jennifer Spector, at which Plaintiff appeared with counsel and testified, and at which a vocational expert also testified. (R. at 21.) On April 27, 2016, ALJ Spector denied Plaintiff's appeal at step five of the sequential analysis, finding that Plaintiff could perform work as a presser, marker, or factory helper. (R. at 32.) The Appeals Council denied Plaintiff's request for a review and Plaintiff timely filed the instant action. (R. at 1-16.)

         B. Medical History

         The following are facts relevant to the present motion. Plaintiff was 54 years old as of the date of the ALJ Decision. (R. at 85.) Plaintiff completed two years of college and has an associate's degree in accounting. (R. at 48, 259.) He had previous work experience as a shift supervisor at a pharmacy, a realtor, and president of an outsourcing trucking company. (R. at 260.)

         1. Physical Impairments

         Plaintiff filed a claim for disability insurance benefits, alleging that he suffered from physical impairments, including type II diabetes, high blood pressure, high cholesterol, blurred vision in his left eye from rosacea, and light sensitivity. (R. at 258.)

         On June 25, 2007, Plaintiff complained of left eye pain, which he had been experiencing off and on for seven years. (R. at 351.) After noting that Plaintiff had visual acuity of 20/200 in both eyes, Dr. Jennifer Resnick anesthetized Plaintiff's eye, “which made him feel much better.” (R. at 351.) Dr. Resnick noted that Plaintiff had “multiple punctate uptake areas of the cornea.” (R. at 351.) Plaintiff was prescribed eye ointment and discharged with instructions to follow up with a doctor in ophthalmology. (R. at 351.)

         Plaintiff's next medical records come from April 23, 2012, when Dr. Alexander Higgins evaluated Plaintiff as a new patient. (R. at 440-44.) Plaintiff complained that his feet were tingling at night and that he had an ongoing problem with his left eye, in addition to issues relating to his mental health discussed below. (R. at 440.) Dr. Higgins reported that Plaintiff had not been on any medications, including those prescribed to him for diabetes and high blood pressure, for over one year. (R. at 440.) Upon examination, Plaintiff was not in acute distress, but his left upper eyelid and periorbital appeared “dry scaly.” (R. at 440-41.) Dr. Higgins conducted a diabetes management exam, which appeared normal except that his toe nails were “too long.” (R. at 441.) For his type II diabetes and benign hypertension, Dr. Higgins recommended diet and exercise and advised Plaintiff to start taking Lisnopril and Sertraline daily. (R. at 441-42.) Dr. Higgins also suggested that Plaintiff schedule an eye appointment. (R. at 443.)

         Two days later, Plaintiff met with Dr. Humeera Hina. (R. at 434-39.) Plaintiff complained of cotton mouth, feeling weak, and frequent urination, but denied any chest pain, shortness of breath, heart palpitations, syncope, dizziness, or edema. (R. at 434.) Dr. Hina noted that Plaintiff had been taking his medication as prescribed but was “NOT doing the following: monitoring [blood pressure], monitoring home glucose, watching diet, and exercising.” (R. at 434.) Upon inspection, Dr. Hina reported that Plaintiff's toenails looked normal. (R. at 435.) Dr. Hina ordered new tests and instructed Plaintiff to see an ophthalmologist, podiatrist, endocrinologist, and nutritionist, to keep a blood glucose log, to call every three days to report his blood sugar levels, to get labs, to exercise five days a week, and to follow-up in one week. (R. at 438.)

         Plaintiff returned to Dr. Hina on May 9, 2012. (R. at 430-33.) At this appointment, Plaintiff informed Dr. Hina he was seeing an ophthalmologist and had scheduled an endocrinologist appointment for July. (R. at 430.) Plaintiff also notified Dr. Hina that he was eating better and no longer felt cotton mouth or tingling or numbness in his feet. (R. at 430.) Plaintiff had not started exercising yet and did not get a chance to do labs. (R. at 430.) Dr. Hina instructed Plaintiff to continue taking his medication and calling every three days to report the results of his blood glucose log, and to follow-up in two weeks. (R. at 432-33.)

         On May 16, 2012, Plaintiff returned to Dr. Hina reporting that he was “feeling pretty good/great” and that he was eating healthier and exercising more often. (R. at 426.) Dr. Hina advised Plaintiff that he should continue to work on his diet and see a nutritionist. (R. at 427.) Plaintiff also informed Dr. Hina that his vision was still blurry, but that he was seeing an ophthalmologist the following week. (R. at 426.) Dr. Hina told Plaintiff to follow-up again in three months. (R. at 429.)

         The following month, Plaintiff returned to see Dr. Hina. (R. at 423-25.) At this follow-up appointment, Plaintiff told Dr. Hina he had started receiving unemployment compensation and was “feeling good.” (R. at 423.) Plaintiff also reported that his appetite was good, but that he was trying to cut back. (R. at 423.) Dr. Hina recommended that he eat healthier, exercise more often, and to follow-up in two weeks. (R. at 425.)

         On July 13, 2012, Plaintiff met with Dr. Maryam Khan for an evaluation and further management of his diabetes, hypertension, and hyperlipidemia. (R. at 455-56.) Dr. Khan assessed Plaintiff as having diabetes type II, poorly controlled, with elevated hemoglobin Alc of 13%. (R. at 455.) Dr. Khan recommended metformin at 500mg, twice a day, to help improve insulin resistance and Titrate up to 1 gram, twice a day. (R. at 455- 56.) Dr. Kahn also suggested that Plaintiff schedule an appointment with a diabetes educator to go over appropriate insulin injection technique and an appointment with Doctor Weigh to make lifestyle changes with respect to his hyperlipidemia. (R. at 456.)

         On September 19, 2012, Plaintiff again met with Dr. Hina. (R. at 418-22.) Plaintiff explained he had not been taking his metformin, but Plaintiff had not taken because he was worried about his kidneys and wanted to discuss with Dr. Hina first. (R. at 418.) Feeling overwhelmed by having to check his sugar levels four times per day, Plaintiff had stopped keeping his blood glucose log the following month. (R. 418.) Plaintiff cancelled his last appointment with his ophthalmologist and had not scheduled another appointment with his endocrinologist. (R. at 418.) Plaintiff also stopped exercising. (R. at 418.) Dr. Hina encouraged Plaintiff to take the medication he had been prescribed, including the metformin, to go back to keeping a blood glucose log, to reschedule the appointments with his ophthalmologist and endocrinologist, to limit his fat intake, to exercise four times a week, to follow a diabetic diet, and to follow-up in two weeks. (R. 421.)

         Plaintiff next returned to Dr. Hina on June 13, 2013. (R. at 412-16.) At this visit, Plaintiff that reported he had not seen the ophthalmologist or nutritionist, nor had he been checking his blood sugars or keeping a blood glucose log. (R. 412.) Dr. Hina also noted that Plaintiff was “NOT doing the following: taking medications as prescribed, watching diet, and exercising.” (R. at 412.) Dr. Hima conducted another diabetes management exam, which was normal except for thickened nails on one foot and nails that were too long on the other. (R. at 413.) Dr. Hina instructed Plaintiff to return to taking his medication, to see a nutritionist, endocrinologist, and ophthalmologist as soon as possible, and to follow-up in two weeks. (R. at 415-16.)

         On June 26, 2013, Plaintiff went back to Dr. Hina for a follow-up appointment. (R. at 408-11.) Plaintiff was “doing good” and had scheduled appointments with a nutritionist, ophthalmologist, endocrinologist, and podiatrist for July. (R. at 408.) According to Dr. Hina, Plaintiff's “mood is good, ” and he had been taking medications as prescribed. (R. at 408.) Dr. Hina described Plaintiff's diabetes condition as “improving” and his benign hypertension as “unchanged.” (R. at 409-10.) Dr. Hina instructed Plaintiff to continue monitoring his blood sugars, to keep his scheduled appointments, and to follow-up in four weeks. (R. at 410.)

         On July 30, 2013, Plaintiff returned to Dr. Hina. (R. at 404-407.) Plaintiff informed Dr. Hina that, because he did not have a job and had lost his health insurance one month ago, he decided to cancel all of his previously-scheduled appointments, except for the ophthalmologist appointment he had scheduled for the following day. (R. at 404.) Plaintiff explained that he was sleeping all day, did not leave the house or shave, and was unable to watch television because his eyes “get shaky.” (R. at 404.) Dr. Hina noted that, although Plaintiff was taking medications as prescribed and watching his diet, he was not exercising. (R. at 404.) Dr. Hina further observed that Plaintiff's type II diabetes was “getting better” and that his benign hypertension was still “unchanged.” (R. at 405.) Dr. Hina advised Plaintiff to limit his fat intake, to start walking and exercising, to continue taking his medication as prescribed, and to schedule a follow up visit in three months with Dr. Rakickas. (R. at 407.)

         On October 27, 2013, Dr. Jeffrey Rakickas completed a “medical source statement, ” which assessed Plaintiff's ability to do work-related activities. (R. at 386-87.) Because Dr. Rakickas had never treated or interacted with Plaintiff, his report was based entirely on his interpretation of Dr. Hina's office notes. (R. at 386.) Based on these notes, Dr. Rakickas concluded that Plaintiff could only sit for 0-2 hours and stand for 1 hour in an 8-hour workday. (R. at 386.) Dr. Rakikas also determined that Plaintiff would likely be absent from work due to impairments and/or treatments for three or more days per month. (R. at 387.) On the other hand, Dr. Rakikas concluded that Plaintiff's experience of pain or other symptoms was “never” severe enough to interfere with his attention or concentration and recommended only that he avoid noise at the workplace. (R. at 387.) Rakikas “never assessed” Plaintiff's ability to lift and carry or push and pull, as well as other “manipulative limitations.” (R. at 386.)

         Three days later, Dr. Rakickas met with Plaintiff for the first time. (R. at 398-402.) Plaintiff reported that he had been able to get out of the house the week before. (R. at 398.) Dr. Rakickas stressed the need for Plaintiff to make dietary changes and to set up a routine appointment with the ophthalmologist, (R. 400-401.) Dr. Rakickas also ordered lab work regarding Plaintiff's diabetes and hypertension. (R. at 400.)

         On November 19, 2013, Plaintiff went back to see Dr. Rakickas. (R. at 392-96.) Dr. Rakickas observed that Plaintiff had been eating healthier, avoiding sugars and carbohydrates, and that his blood sugars were lower. (R. at 392.) Plaintiff reported having some urinary symptoms over the past several days, but those issues had been resolved. (R. at 392.) Plaintiff also complained of left flank pain, which Dr. Rakickas determined could be a possible kidney stone. (R. at 394.) Dr. Rakickas otherwise noted that there were “[n]o complaints today in the office” and that Plaintiff “[f]eels well.” (R. at 392.) Dr. Rakickas recommended that Plaintiff cut back on his nighttime insulin by two units per night and schedule appointments with a kidney doctor and podiatrist. (R. at 395.)

         On December 26, 2013, Plaintiff met with Dr. Cheryl Mitchell, an ophthalmological consultant. (R. at 462-66.) Dr. Mitchell noted that Plaintiff “has an ocular history of Rosacea related blepharitis” and that he “complains that his left eyelashes ‘rub and irritate my left eye.'” (R. at 462.) Dr. Mitchell recounted that Plaintiff had seen two other ophthalmologists in the past, one of whom had prescribed an ophthalmic ointment. (R. at 462.) Plaintiff's visual acuity was 20/30 in one eye and 20/40 in his other eye, and his near acuity was “Jaeger 3 right eye” without his glasses and “Jaeger 4 left eye” without his glasses. (R. at 462.) Dr. Mitchell further noted that Plaintiff had “a very apparent left ptosis upper eyelid with an upper and lower left eyelid entropion appearance, ” but that there was no retinopathy. (R. at 463.) Ultimately, Dr. Mitchell concluded “Left Eye: Superior lid artifact but otherwise normal.” (R. at 463.) Dr. Mitchell recommended repair of his left ptosis and lower eyelid entropion and “aggressive management of his rosacea through topical treatment and or systemic doxycycline.” (R. at 463.) Dr. Mitchell found that there is “no disability based upon vision alone.” (R. at 463.)

         Plaintiff visited Dr. Alexander Hoffman on January 21, 2014. (R. at 467-68.) Upon physical examination, Dr. Hoffman noted that Plaintiff was obese, had 20/25 acuity in his right eye and 20/50 acuity in his left eye, and had mild rosacea. (R. at 467.) Plaintiff otherwise appeared to be normal, had “excellent” straight leg raising, and could balance on either leg. (R. at 468.) Dr. Hoffman concluded that Plaintiff had slightly ...

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